Sex, Consent, and the Dangers of “Misplaced Scale”

Amid the current wave of stories about the sexual misbehavior of men in power, like the former Oklahoma state senator Ralph Shortey, we risk reverting to a more sexually restrictive era.

Photograph by Sue Ogrocki / AP

Thirty-three years ago, Gayle Rubin, a cultural anthropologist and
feminist activist, observed that, during certain times in history,
humans tended to renegotiate the sexual order. The late nineteenth and
early twentieth centuries in England and the United States were such a
period; the nineteen-fifties, when the popular imagination linked the
threat of Communism to homosexuals, was another. In her still
influential essay “Thinking
Sex,”
Rubin didn’t offer a hypothesis to explain why these periods called for
a rearrangement in the sexual sphere, but she noted that they produced
laws, institutions, and, most important, norms that governed sexuality
for decades after.

It’s possible that we are living through such a period now. It is also
possible that, like previous renegotiations, this one has been brought
on by the fear of a world careening out of control. “The time has come
to think about sex,” Rubin wrote in the opening lines of “Thinking Sex.”
“To some, sexuality may seem to be an unimportant topic, a frivolous
diversion from the more critical problems of poverty, war, disease,
racism, famine, or nuclear annihilation. But it is precisely at times
such as these, when we live with the possibility of unthinkable
destruction, that people are likely to become dangerously crazy about
sexuality.” Fast-forward to 2017: we are living with the possibility of
unthinkable destruction, but we seem to be spending significantly more
time discussing the sexual misbehavior of a growing number of prominent
men than talking about North Korea or climate change.

Rubin did not expect good things to come from the renegotiation of the
sexual sphere. The problem, she wrote, was “the fallacy of misplaced
scale”: sex loomed so large that any sexual transgression, or imagined
transgression, might bring extreme punishment. She quoted Susan Sontag,
who wrote that “everything pertaining to sex has been a ‘special case’
in our culture.”

Consider the case of the former Oklahoma state senator Ralph Shortey,
who is
scheduled to appear in federal court in Oklahoma City on Thursday to plead guilty
to child trafficking. Shortey, who is thirty-five, married, and
politically very conservative, was arrested in March in a motel room
where he apparently planned to have sex with a seventeen-year-old boy
whom he had met on Craigslist. They had negotiated sex for payment
before coming to the motel. According to investigators, Shortey had been
advertising for young men for a number of years, and had sent
“commercial pornography” to some he had met online in exchange for naked
pictures of them. The age of consent in Oklahoma is sixteen, and all the
teen-agers involved were at least
that old. But federal laws on child
pornography and child
prostitution cover people under the age of eighteen, and “pornography” doesn’t
necessarily mean pornography: any naked photo may be prosecutable, and
“trafficking” doesn’t mean trafficking—no movement, capture, or pimping
need occur. Because Shortey was facing prosecution for child trafficking
and several counts of child pornography (every photo can be a separate
crime), he was looking at life in prison. As a result of the plea deal,
he will go to prison for at least ten years—for what appears to have
been a series of entirely consensual encounters between legal adults.
This is an example of “misplaced scale.”

Consider a very different example. Glenn Thrush, a White House reporter
for the Times, was suspended in advance of the publication of a
story,
by Vox, that described multiple instances in which Thrush made sexual
advances toward younger women. In one, he kissed a woman on the ear (at
the time, the woman seemed to have shrugged it off); in another, there
was a consensual but aborted sexual encounter. All of the incidents
appear to have involved consumption of alcohol, none occurred in the
workplace, and none involved force. None of the women reported to
Thrush, who, as a reporter (then at Politico), was nobody’s boss. The
Timesannounced that it was suspending Thrush because of accusations of “inappropriate
sexual behavior.” This is another example of “misplaced scale”:
employers do not normally appoint themselves arbiters of appropriate
behavior outside the workplace. It is hard to imagine a non-sexual
example of non-work-related behavior that would get a reporter
preëmptively suspended in the absence of any crime or misdemeanor.

Rubin’s essay was written during a period now remembered as the
“feminist sex wars.” The women’s movement had split into two camps: a
less audible and less visible sexual-liberationist wing and a dominant
wing that was highly, militantly suspicious of sex. The latter wing
strove to tame and defang sex so that it would not contain even a hint
of power.

The feminist sex wars raged largely unnoticed by the larger culture. The
battles, though, concerned a lot of the issues directly relevant to the
current moment of sexual renegotiation. One such issue is consent. One
side argued that no consensual act should be punishable by either law or
social sanction. The other side focussed on the limits of consent,
arguing that consent was sometimes—or even most often—not entirely
freely given, and that some things, like injury sustained during S & M
sex, could not be the object of consent.

The idea that consent is irrelevant is clearly present in the Shortey
case: the young men had reached the age of consent and had given their
consent, but the federal government still views them as victims. The
story on the basis of which Thrush was suspended muddies the waters on
consent: one of the women has clearly said that she had consented to an
encounter, and two others rejected Thrush’s advances, successfully
withholding consent. Still, all the women are cast as victims—including
the woman who clearly stated that she does not consider herself a
victim.

The conversation we are having about sex began with incidents that
involved clear coercion, intimidation, and violence. Paradoxically, it
seems to have produced the sense that meaningful consent is elusive or
perhaps even impossible. On Tuesday, the band Pinegrove
announced that it was suspending its tour because its front man, Evan Stephens
Hall, had been accused of sexual coercion. The details of that
particular accusation are unclear. But, on the group’s Facebook page,
Hall posted a statement that seemed to sum up his sense that women, at
least when faced with a famous man, cannot make adult choices: “i have
been flirtatious with fans and on a few occasions been intimate with
people that i’ve met on tour. i’ve reached the conclusion now that
that’s not ever appropriate—even if they initiate it. there will always
be an unfair power dynamic at play in these situations and it’s not ok
for me to ignore that.”

The timing of this current sexual renegotiation makes sense. Sex is one
area where, it seems, we can change something. In this way, sex is
different from a nuclear holocaust or a climate disaster. But, while we
think we are moving forward, we may be willingly transporting ourselves
back to a more sexually restrictive era, one that denied agency to
women.

In the past, sexual laws and regulations have most often been
strengthened in the name of protecting children. “For over a century, no
tactic for stirring up erotic hysteria has been as reliable as the
appeal to protect children,” Rubin wrote in 1984. Sometimes the children
are symbolic: anti-gay crusades are almost invariably framed in terms of
“saving the children”— not specific children, but just the children who
have to share a country with queers. In the current American
conversation, women are increasingly treated as children: defenseless,
incapable of consent, always on the verge of being victimized. This
should give us pause. Being infantilized has never worked out well for
women.